Hosmer v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Heidi Ann Hosmer, No. CV-19-08002-PCT-JJT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 After the Court ordered the matter remanded to the Social Security Administration 17 for payment of benefits, Plaintiff moved for Attorney’s Fees under the Equal Access to 18 Justice Act and filed a Memorandum in Support. (Docs. 27–28., “Pl. Mem.”.) Defendant 19 filed an Opposition (Doc. 29, “Def. Opp.”), and Plaintiff filed a Reply. (Doc. 33., “Reply”.) 20 The Court has considered the above briefing, and for the following reasons, grants in-part 21 Plaintiff’s Motion for Award of Attorney’s Fees as Authorized by the Equal Access to 22 Justice Act for fees totaling $8,227.21—Plaintiff’s total requested fees reduced by $2,642.1 23 Plaintiff and Defendant dispute nearly every aspect of Plaintiff’s Motion, which has 24 arguably resulted in satellite litigation the Ninth Circuit has warned about. See Crawford 25 v. Astrue, 586 F.3d 1142, 1152 (9th Cir. 2009); see also Hensley v. Eckerhart, 461 U.S. 26 27 1 In her Motion, Plaintiff originally sought $9,842.96. In her Reply, she requests $10,869.21. The additional $1,026.25 represents five hours worth of fees at a rate of 28 $205.25 incurred by Plaintiff’s counsel in reviewing Defendant’s Opposition and crafting the Reply. 1 424, 437 (1983) (“A request for attorney’s fees should not result in a second major 2 litigation.”). Further, a significant portion of the parties’ briefs and arguments are directed 3 towards issues that do not inform the Court’s judgment regarding the relevant 4 considerations in deciding whether fees are appropriate in this case, and if so, in what 5 amount. (Pl. Mem. at 1–2; Def. Opp. at 2–5; Reply at 2–6.) The remaining issues relevant 6 to deciding this fee dispute are: (1) whether Defendant’s position was substantially justified 7 at the agency level and before the federal courts; and if not, (2) whether the requested fees 8 are reasonable. 9 Plaintiff and Defendant debate the relevant standards in determining when an 10 agency’s position is substantially justified. (Pl. Mem. at 5–7; Def. Opp. at 4–10.) The Ninth 11 Circuit’s caselaw crystalizes the relevant standards. First, it is the government’s burden to 12 show that its position was substantially justified. See Tobeler v. Colvin, 749 F.3d 830, 832 13 (9th Cir. 2014). Next, the government’s position must be justified to a reasonable degree 14 by showing its position has a reasonable basis in law and fact. Id. Finally, the government’s 15 position encompasses both its litigation position and the underlying agency action giving 16 rise to the case. Id. Defendant mistakenly relies on Decker v. Berryhill, 856 F.3d 659, 655 17 (9th Cir. 2017), to support the proposition that the government’s position is not 18 substantially justified only when remand of the underlying agency action is “a foregone 19 conclusion.” Decker and its companion case Gardner v. Berryhill, 856 F.3d 652, 656 (9th 20 Cir. 2017), concern the specific scenario of whether the government’s position is 21 substantially justified when it opposes remand of a case where new evidence was submitted 22 after an ALJ decision but before district court review of the ALJ’s decision. That scenario 23 is not implicated here, and those cases’ specific applications of the general rules do not aid 24 the Court’s evaluation of this case. 25 Turning to this case, Defendant’s position was not justified at the agency level or 26 before the federal courts. The Court’s Order remanding Plaintiff’s case for payment of 27 benefits establishes that Defendant’s position at the agency level—the ALJ’s decision— 28 was not substantially justified. (Doc. 25.) In its order, the Court explains that the ALJ 1 erroneously rejected Dr. Kevin Horan’s opinion based on rationales that were unsupported 2 by the record. (Id. at 4–6.) Similarly, the Court also found the ALJ erred by rejecting 3 Plaintiff’s symptom testimony. (Id. at 6–7.) Defendant attempts to relitigate the Court’s 4 findings and points to evidence that purportedly supports the ALJ’s findings. (Def. Opp. at 5 6–10.) For example, Defendant argues the ALJ’s rejection of Dr. Horan’s opinion was for 6 permissible purposes and had some support in the record, and therefore, had a reasonable 7 basis in law and fact. (Def. Opp. at 6.) But the Court has already concluded that Defendant’s 8 argument is incorrect. The ALJ’s conclusions were unsupported by even a minimal 9 threshold of evidence. (Doc. 25 at 4–6.) Similarly, Defendant argues the ALJ correctly 10 rejected Plaintiff’s symptom testimony, but, again, the Court has already concluded that 11 the ALJ provided only a single, insufficient basis for rejecting her testimony. (Def. Opp. at 12 8; Doc. 25 at 6–7.) Thus, Defendant’s arguments are unpersuasive. The ALJ’s rejection of 13 Plaintiff’s testimony and Dr. Horan’s opinion failed to survive even the highly deferential 14 substantial evidence review. See Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir. 2013) 15 (reiterating that a strong indicator that the government’s position is not substantially 16 justified is that the underlying agency decision is unsupported by substantial evidence). 17 Accordingly, neither the ALJ’s decision underlying this civil action nor Defendant’s 18 defense of the ALJ’s errors was substantially justified. 19 Next, Defendant provides several reasons why Plaintiff’s requested fees are 20 unreasonable. First, Defendant argues Plaintiff’s attorney unreasonably spent 8 hours 21 drafting the Complaint in this case. (Def. Opp. at 11.) Defendant thus argues the Court 22 should reduce the time requested from 8 to 2.5 hours. (Id. at 13.) Second, Defendant argues 23 Plaintiff’s attorney spent unreasonable time drafting and editing the Opening Brief and 24 Reply. (Id. at 13–16.) Accordingly, Defendant argues for further reductions. (Id.) Next, 25 Defendant argues Plaintiff’s attorney used “block billing” which makes it difficult to 26 discern how much time was spent on specific tasks and warrants further reduction. (Id. at 27 16–17.) Finally, Defendant argues that Plaintiff’s Reply to Defendant’s Opposition brief 28 1 on this fee issue is unreasonable and warrants further reduction. (Id. at 18.) All together, 2 Defendant argues the Court should award no more than $5,201.80. 3 Generally, the Court rejects Defendant’s arguments but agrees that the amount of 4 time billed to draft a 14-page complaint under the circumstances is either itself excessive 5 or renders the time spent drafting the Opening Brief excessive. (Id. at 11–16.) The Court 6 finds persuasive Defendant’s argument that the time spent on the Complaint resulted in 7 duplicative tasks rather than downstream efficiencies at the briefing stage. (Id. at 12.) 8 Notably, Plaintiff’s attorney billed 18.5 hours for him and a different attorney, Robin 9 Larkin, to familiarize and review the record and case documents twice more after 10 performing similar tasks at the complaint stage.2 (See Doc. 28–2, entries for 5/26/19, 11 5/27/19, 10/31/19.) The time spent conducting such review should have been reduced given 12 the time Plaintiff’s counsel spent familiarizing himself with the record while drafting the 13 very thorough Complaint. The Court cannot make a perfect distinction between time that 14 was unreasonably expended at the complaint or briefing stages but can conclude that some 15 time was unreasonably expended. Thus, the Court finds that, although Plaintiff has 16 established that some of the fees sought are reasonable, the Court will reduce the awarded 17 fees to reflect unnecessarily duplicated labor at the complaint and briefing stages by 8 hours 18 at the 2019 rate of $205.25 per hour for a total reduction of $1,642. See Hensley, 461 U.S. 19 at 437. 20 Additionally, the Court will reduce Plaintiff’s remaining requested fees by $1,000 21 for work unrelated to the merits of this fees determination. In determining appropriate fees, 22 “courts should generally defer to the ‘winning lawyer’s professional judgment as to how 23 much time he was required to spend on the case.’” See Costa v. Comm’r of Soc. Sec. 24 Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) citing Moreno v. City of Sacramento, 534 F.3d 25 1106, 1112–13 (9th Cir. 2008). Counsel for the winning party should exercise good faith 26 2 The Court notes that the services billed for the 5/26/19, 5/27/19, and 10/31/19 27 entries also include research and drafting tasks. (See Doc. 28–2, entries for 5/26/19, 5/27/19, 10/31,19.) The Court will not reduce the awarded fees for non-duplicative research 28 and drafting reflected in these entries, but only for duplicative review tasks accomplished at the complaint stage. billing judgment. Hensley, 461 U.S. at 434. And the Court can impose a reduction of up to 2|| 10 percent based purely on the exercise of its discretion and without more specific explanation. See Costa, 690 F.3d at 1136. 4 A significant portion of Plaintiff's briefing was aimed at addressing issues that do 5 || not address the merits of the relevant issues in this case. Accordingly, the Court finds a $1,000 “haircut”—less than 10% of the total requested fees—is reasonable. See Moreno, 7\| 534F.3d at 1116. Plaintiffs counsel’s focus on inessential issues means he expended more 8 || labor than necessary on briefing the relevant issues, though again, the exact quantity of unreasonably expended work escapes perfect calculation. See Costa, 690 F.3d at 1135 10 || (reiterating that counsel for the prevailing party should use billing judgment and exclude 11 || hours from a fee request that are excessive or unnecessary). 12 IT IS THEREFORE ORDERED granting in part and denying in part □□□□□□□□□□□ 13 || Motion for Award of Attorney Fees as Authorized by the Equal Access to Justice Act. (Doc. 27). Plaintiff is awarded attorneys’ fees in the amount of $8,227.21. Defendant shall 15 || make payment to Plaintiff in that amount pursuant to EAJA, 28 U.S.C. § 2412(d). The award shall be payable to Plaintiff's counsel. 17 Dated this 2nd day of March, 2021. CN iy. Unifgd StatesDistrict Judge 20 21 22 23 24 25 26 27 28 _5-